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Culture Documents
GRANT STERN,
CASE NO.:
Plaintiff,
v.
Defendants.
_____________________________________/
EX PARTE
MOTION FOR AN EMERGENCY TEMPORARY INJUNCTION
Plaintiff, GRANT STERN, by and through undersigned counsel, and pursuant to Fla. R.
Civ. P. 1.610, hereby files this Ex Parte Motion for an Emergency Temporary Injunction against
Defendants Victoria Mendez (Mendez) and Francisco J. Garcia (Garcia), and in support
INTRODUCTION
1. Plaintiff is seeking declaratory and injunctive relief against Defendants City of Miami
(City), City Attorney Victoria Mendez (Mendez), and City Planning and Zoning Director
Francisco J. Garcia (Garcia), for their violations of Floridas Public Records Act, Floridas Public
Meetings Act, Miami-Dade Countys Bill of Rights, and the City Charter related to particular
actions taken by the Defendants against Stern when he formally appealed Garcias approval of
Wal-Mart Stores East, LPs (Walmart) application for a Class II Special Permit.
2. The verified Complaint initiating this action (filed concurrently with this Motion) describes
in detail- and includes documentation supporting- the Plaintiffs allegations on the three (3) counts
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plead therein. Plaintiff incorporates the verified Complaint herein by reference, and summarizes
some of its facts as grounds for the issuance of a Temporary Injunction against Mendez and
3. Florida law requires that a party seeking an injunction must show (1) substantial likelihood
of success on the merits (on a clearly established principle of law), (2) irreparable harm, (3) an
4. Plaintiff has a clear legal and constitutional right to inspect and receive copies of all public
records to which no statutory exemption applies. Fla. Const. Art. I, 24(a); Fla. Stat.
119.07(1)(a).
5. Plaintiff made a valid request to Defendants City, Mendez, and Garcia to inspect and copy
public records in their custody before the November 20, 2014 City Commission hearing.
Defendants were made aware that time was of the essence. Plaintiff provided multiple written
notices to the Defendants relating to the records requests between October 24, 2014 and
6. All of the records requested were kept and available in electronic format, and were being
circulated among the Defendants during the period Plaintiff requested them. In addition to copies
duty to permit the Plaintiff to inspect and copy all public records. Fla. Stat. 119.07(1)(a). The
Defendants are required to acknowledge requests to inspect or copy public records promptly and
to respond to such requests in good faith. Fla. Stat. 119.07(1)(c). The only delay in producing
records permitted under Chapter 119 is the limited reasonable time allowed for the custodian to
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retrieve the record and delete those portions of the record the custodian asserts are exempt.
8. Every person has the right to inspect or copy any public record made or received in relation
to the official business of any public body, officer, or employee of the state, counties,
municipalities, and districts. Fla. Const. Art. I 24(a). Accordingly, records relating to the Citys
public meetings must be available for public inspection and copying by any person, and every
custodian of a public record must permit inspection and copying in a timely manner, under
reasonable conditions, and subject to supervision. See Grapski v. City of Alachua, 31 So.3d 193,
02 Irreparable Harm
9. Garcia and Mendez, as department heads, serve as the custodians of the public records
relevant to this action. The public records in their custody are also central to this action. Mendez
and Garcia have demonstrated a pattern- especially when holding an adversarial position to the
Plaintiff- of misrepresenting critical information on, and denying him access to public records
10. Some of these records are designated by the Florida Department of States Division of
Library and Information Services current General Record Schedule (GS1-SL) as having limited
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d. Inventory: Agency Records (GS1-SL, Item #319, at 22) are retained until
e. Permits: Building (GS1-SL, Item #286, at 30) are retained for ten (10) years, and
Item #392) are retained until disposition of records to which notification or request
records;
g. Receipt/Revenue Records: Detail (GS1-SL, Item #365, at 35) are retained for five
Code/Ordinance (Permitting Fee) (GS1-SL, Item #428, at 36-37) are retained for
i. Resolutions: Supporting Documents (GS1-SL, Item #143, at 37) are retained for
Garcia and Mendez must not be permitted to transfer, alter, or destroy these records in their
constitutes, in and of itself, irreparable injury to the person making the public records request. See
Daniels v. Bryson, 548 So.2d 679, 680 (Fla. 3d DCA 1989). Failing to produce public records for
inspection and copying in a reasonable amount of time, and impermissibly withholding and
delaying the release of records until after the hearing at which they would be relevant, constitutes
a severe disadvantage to a party at an official hearing, especially when the records were readily
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available to the appellees and Defendants. Very few remedies exist to relieve this irreparable
injury.
12. Garcia and Mendez have repeatedly made misrepresentations regarding public records
and the Walmart project, including some misrepresentations to this Court regarding the Walmart
project and related public records, and have failed to adhere to City law in their decisions.
13. In his requests, Stern expressly informed the Citys staff, including Garcia and Mendez,
that the requests related to the City Commissions upcoming hearing, that he be provided access
14. Although the Mendez acknowledged the requests, and had access to the electronic
records, the only record produced between the October 24, 2014 initial request and the start of
the November 20, 2014 City Commission hearing was the Notice the PZD postmarked on
November 07, 2014. Neither the City, Mendez or Garcia provided additional records to Stern
within the time-period he requested them, did not provide Stern the opportunity to inspect the
records before the meeting, and did not deny or affirm the existence of the records Stern
requested.
15. Garcia, director of the PZD, and the custodian for most of the requested records did not
respond at all to Sterns written requests, even though emails recovered in a subsequent public
records action indicate that the PZD knew that the public records requests had been made.
16. . Also, his in Final Approval of Walmarts permit, Garcia expressly affirmed that he received
comments and recommendations from five (5) referral sources (necessary and required under
Ordinance 11000 1301.2), including the Zoning Section of the PZD, Department of Public
Works, Office of Transportation, Wynwood NET Office, and the Urban Development Review
Board. After years of affirming the existence of these referrals, the City, for the first time since
Walmart submitted its application, admitted in its response to Pfeffer II, that Garcia had only
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completed three (3) of the five (5) necessary and required referrals above, despite representations
17. On November 13, 2015, Stern filed a public records enforcement action with this Court to
compel production of the documents that had been unproduced per his September 03, 2015
public records request. During that enforcement action, the City produced, for the first time,
thousands of records responsive to Sterns October 24, 2014 requests. Although those records
existed and although many were responsive to the 2014 requests, they were not provided or
referenced at the time the 2014 requests were made, and their existence was discovered between
2015 and 2016, incidental to Sterns November 9, 2015 enforcement action and subsequent
requests.
18. Mendez and Garcia have exhibited a pattern of substantial noncompliance with public
records requests, especially when it suits their interests, and have failed to fully comply, even in
response to multiple requests, and a court order. Little, if no remedy exists to the approach they
19. The Defendants compliance with Floridas Public Records and Public Meeting Laws is
mandatory, and the burden of compliance, especially in the circumstances described here, is
minimal. Nevertheless the course and conduct of the Defendants demonstrate that the
Defendants have treated a mandatory constitutional duty as a mere suggestion, and have
mustered a dedicated effort to avoid compliance as required by the law, including making knowing
and willing misrepresentations to the Plaintiff, journalists, and the public about the existence of
public records, refusing to deny the existence of records or claim exemption to their production,
using the requested records to their procedural advantage while delaying their access to a legally
recognized adversary in a quasi-judicial proceeding, along with other examples of unlawful and
unjustifiable denial. The aggressive prosecution of these constitutional violations by Mendez and
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Garcia have not only unnecessarily depleted a considerable amount of public resources to
perpetuate, but have exposed the City to unnecessary liability and potentially costly litigation, in
addition to placing public confidence in the Citys actions at risk, especially those of the
department heads named herein, who are compensated handsomely to perpetuate this
misconduct.
20. The City continues to employ and pay both Defendant Mendez as its City Attorney, and
Defendant Garcia as its Director of Planning and Zoning, and Defendants Mendez and Garcia
21. These violations of Floridas Public Records Act, if not enjoined, will have immediate and
harmful consequences to those very affected City residents, namely those who invest time and
expenses preparing to attend and participate in the Citys public meetings on issues affecting their
immediate community, especially those citizens recognized as appellants to the Citys zoning
decisions.
REQUESTED RELIEF
22. The summary of the facts in Plaintiffs verified Complaint, provided above, indicate that
Mendez and Garcia cannot be relied upon to participate in these proceedings with honesty,
integrity, accountability, and repeatedly fail to adhere to the principles of law that form the basis
to this action.
23. Garcia and Mendez are the department heads and the records relevant to this action are
almost exclusively in their custody. It is essential that this relief be implemented before the
Defendants have an opportunity to be heard to prevent any further harm, injury or loss to these
records. The requested relief sufficiently addresses and is narrowly tailored to the circumstances
of this case.
A. Enjoin Mendez from representing the City and/or Garcia in this action;
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B. Enjoin Mendez and Garcia from transferring, modifying, and/or deleting all records
C. Enjoin Mendez and Garcia from actively participating in and/or directing City
employees in all matters concerning the Walmart project, and/or this action, for the
Respectfully Submitted,
ATTORNEY CERTIFICATION
Given Garcia and Mendezs current roles as City department heads and custodians to the records
at issue here, and given the pattern of misrepresentation and disregard for the rule of law
summarized above, it is essential that to achieve maximum effectiveness, this injunction must be
issued swiftly and prior to personal service of the Complaint. Nevertheless, in the interim, I have
included their emails on the electronic service list to this action.
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